September 15, 2019
Sheilla Dingus
Much debate has swirled around whether Antonio Brown should be placed on the commissioner’s exempt list or face suspension since news broke of a lawsuit alleging that he raped a former trainer. If the allegations are true, then Antonio Brown should be punished, but at this stage, all the public and presumably the Patriots and NFL have is a “he said/she said” scenario, with the only evidence an unsworn lawsuit filed in federal court and a statement by Brown’s attorney refuting the allegations.
For once, the NFL did something right in delaying action until more facts can be determined but that can change on a moment’s notice.
Currently, there are primarily three camps that should take a step back and place their emotions in check.
Group 1:
This group is composed of fans declaring Brown’s innocence because they want to see him on the field. They believe he can help their team win games and have placed blinders on everything else. Unfortunately, talent and innocence aren’t synonymous.
Group 2:
There’s a different group of fans declaring that Brown should be punished or at least placed on the commissioner’s exempt list (which equates to punishment) because they don’t like the way he departed from Pittsburgh or Oakland. What some view as tantrums, others view as labor strategy, but of course, all this is irrelevant to the matter at hand. Marching to the beat of a different drummer and guilt aren’t synonymous either.
Group 3:
Some women’s advocates are demanding that the Patriots fire Brown based on the allegations against him. The irony here is that victims of sexual assault are often judged by past behavior and denied due process and now the same people are attempting to impose the same fate upon Brown.
Due Process
Unless someone has secretly had Brown under constant surveillance for the past two years the facts surrounding what happened between Britney Taylor and Antonio Brown are unknown.
I’m generally in the #BelieveWomen camp. As a survivor of rape and assault, I find these acts particularly abhorrent. I understand why many women don’t go to the police. I was one of them. I didn’t want to be judged regarding every aspect of my life prior to the rape in order for the authorities to decide if I was a worthy enough victim. I was embarrassed and didn’t want my family to find out, knowing I’d be blamed for going out alone. The fact that Britney Taylor didn’t file a criminal complaint should not be held against her.
I also know what it’s like to feel betrayed by the system that is supposed to deliver justice.
Years ago, I quit a job where the business owner was verbally abusive. When I quit, he ordered me off the premises and I complied. The next day, I returned to retrieve the personal belongings I’d left behind.
I slipped through the backdoor and said hello to a few former co-workers before heading to the breakroom to retrieve my things. Apparently, someone told the boss I was there.
As I left the breakroom, ready to head back downstairs, the ex-employer met me on the landing and accused me of stealing. I showed him what I had in order to demonstrate that I’d only gathered my personal possessions but he flew into a rage, began shouting obscenities and shoved me, causing me to fall down a full flight of stairs.
This time I limped to the business next door and called the police. When he arrived, I told the responding officer what had taken place. I expected that he’d arrest my former employer since I was bruised and bleeding from the fall, but instead, he told me that he’d investigate.
In the days that followed, I called the police department several times to follow-up and see if a court date had been scheduled or if they needed anything else. The response was always, “no,” and this repeated for a few weeks.
One day when I called, an officer informed me that the former employer denied the allegations and said that I was trying to steal and became startled and tripped when he caught me. There were no witnesses so the DA declined to press charges and if the employer was not charged with anything else within a year, no further action would be taken. I felt completely betrayed.
I related this story because I know the pain of being raped and I also know how it feels to be denied any semblance of due process. I’d venture that many of us have been falsely accused of something, hopefully outside a court of law. Even so, when this takes place, there’s a real risk of damage to one’s reputation and credibility. Antonio Brown has already felt the sting in the loss of his helmet endorsement deal with Xenith.
Because of this, I decline to rush to judgment regarding Antonio Brown. There are just too many unknown variables in play. While false reports of rape are rare and estimated at between 2% and 10%, it’s not outside the realm of reason that the accusations may be part of the 2-10%.
On the other hand, wealthy athletes and other celebrities sometimes take liberties and force themselves on women presumably to increase or reinforce their stature, at least in their own minds. But this certainly only encompasses a minority of athletes and it’s unfair to assume guilt without evidence since it’s equally true that professional athletes are extorted more often than those of us of more modest means.
There’s an adage, “Hell hath no fury like a woman scorned.” When the object of scorn is a wealthy celebrity extortion sometimes become a vehicle of revenge. Antonio Brown says that Taylor wanted him to invest $1.6 million in a business project and claims a substantial portion of that was to purchase property that Taylor and her mother already owned.
Either version of the story so far is believable and viable. Thus far the only evidence produced is two out of context text messages allegedly from Brown.
While the language used was vulgar and the messages certainly don’t portray Brown in a positive way, the context in which they were sent is missing. Brown’s statements like, “U hit me up online…I didn’t hit U up,” “don’t write my team,” and “u n your momma plotting,” could be in response to an accusation or possibly a threat.
Both the NFL and Patriots are correct in taking a “wait and see” approach. Unless a settlement is reached which appears unlikely from statements made by Drew Rosenhaus, Brown’s agent, the full messages will be produced through discovery along with any other pertinent evidence that may exist.
If additional evidence is produced to support Ms. Taylor’s version of the facts, then Brown should be punished, but only then. Taylor has lost nothing if Brown continues to play while her allegations are investigated.
On the other hand, if additional evidence surfaces to support Brown’s version of the facts, then it would be a travesty to punish him for not caving to extortion.
The only reasonable course of action is to learn more before making a conclusion. So far, the NFL and Patriots have handled the situation prudently. Whether this will continue remains to be seen.
What’s Next?
In an evaluation on The MMQB, law professor and SI legal analyst Michael McCann points out, “[T]he NFL is not a court system beholden to assurance of absolute fairness. At the end of the day, the NFL is an entertainment company that attempts to maximize its brand with consumers.”
Both Michael McCann and appellate, sports law, and gaming attorney Daniel Wallach, who also does legal analysis for The Athletic have provided outstanding coverage and insight into the legal aspects of the case.
Wallach noted that it would be without precedent to place a player on the exempt list with no criminal charges, no police report, and only an unsworn complaint as evidence, which McCann corroborates.
“If a civil lawsuit were all it took to get players taken off the field, that would subject athletes to extortion, and significantly swing the leverage against them in negotiation settlements,” says Wallach in comments to Boston Globe. “What if he’s exonerated? What if the suit is dismissed? What if she’s sanctioned for filing a frivolous lawsuit? You can’t unscramble the egg once you impose discipline.”
As both Wallach and McCann point out, the league will be conducting its own investigation at which time a decision will likely be made as to whether there is enough evidence to place Brown on the exempt list.
I spoke to Wallach on the phone in order to gain additional insights and he emphasized that one of two things must happen in order for the NFL to place Brown on the commissioner’s exempt list. Either there must be formal criminal charges (such as an indictment), which in this instance has not occurred (and this is likely why the NFL hasn’t been reactionary thus far) or some investigation must take place that leads Roger Goodell to believe there may have been some misconduct. The operative words are, “some,” “believe,” and “may.”
The NFL doesn’t have to complete an investigation. Wallach noted that Goodell could interview Taylor and if he finds her credible, make a decision even before Brown has a chance to rebut or present his evidence, because “some” investigation would have taken place.
It’s only necessary for Goodell to “believe” that Taylor is credible which would cause him to suspect that something unsavory “may” have occurred.
Jarrett Bell wrote for USA Today, “Sure, people want answers. And fast. But tap the brakes. Careful deliberation is the responsible approach…due diligence is not often executed at warp speed.” This is absolutely true, but we should know within the next week or two according to Wallach if this will take place, or if Goodell will act on “some” investigation that leads him to “believe” that misconduct “may” have occurred.
While the exempt list isn’t technically discipline, should Brown find himself on it for an extended period of time, the result could be devastating to his career. While he would continue to receive his base salary, as I mentioned in the conversation with Wallach, he’d lose his incentives and stats both for the season and his career overall, to which Wallach stressed that the impact would be even deeper.
“I mean, it’s not just, he can’t meet his performance incentives,” he said. “You can’t practice or play. You’re not keeping pace with the rest of the roster—you’re not progressing relative to the other players in the league.” This is an especially relevant observation in Brown’s situation. Having only joined the Patriots a week ago he is just beginning to learn the playbook. He hasn’t developed a connection with Tom Brady, nor a chemistry with his new teammates. Wallach noted without this he will be at a “severe disadvantage” on receiving a renewed contract or securing a similar contract with a different team. “He becomes a free agent a year from now. Well, what kind of contract do you think Brown would get after a complete year of inactivity?” he injected.
If Brown should be eventually found not liable of wrongdoing and his accuser is found not credible, “he’s already suffered tremendous loss that he can’t recover,” Wallach stated.
Unfortunately, as Michael McCann astutely pointed out in his article, fairness isn’t necessarily the end objective, but rather what will boost the image and earnings of the NFL.
Wallach and I discussed NFL discipline under Article 46 and how discipline under the personal conduct policy held up in the cases of Adrian Peterson, Tom Brady, and Ezekiel Elliott, all of whom had compelling arguments that they presented in federal court.
“You know, it’s going to be very difficult for any player to overcome the great deference afforded to arbitrators by federal courts,” Wallach stressed. “I would have thought that the Elliott, Brady and Peterson cases presented very strong candidates for an exception to the general rule; none more so than Peterson who was punished under a new policy at a heightened level for conduct that predated the creation of the amended policy. So that had all of the hallmarks of a successful challenge to an arbitration.”
“The Brady case, likewise, had all of the boxes checked, most notably on the issue of fundamental fairness with the denial of important witness testimony and exclusion of documents. But those two cases—which seemed like sure winners for the NFLPA (and in fact were at the district court level) –were ultimately decided in the league’s favor. Given the wide berth that arbitrators have in labor arbitrations, it would be difficult to imagine any case being the one that topples Roger Goodell’s wide-ranging and sweeping authority under Article 46.” Wallach reminded, “The League has made a number of colossal mistakes in the manner in which it has conducted Article 46 arbitration proceedings. There were holes big enough to drive a truck through, yet the NFL was bailed out by a very differential standard of judicial review. It’s going to require something really significant in terms of a departure from the CBA for the pendulum to swing back in favor of the players.”
When Ezekiel Elliott appealed a suspension based on accusations against him, it was revealed that the NFL’s lead investigator did not find Elliott’s accuser credible and recommended against punishment. Her suggestions were ignored as Goodell leveraged the situation to present a “get tough on domestic violence” message while at the same time, sidelining the best receiver for Dallas Cowboys owner Jerry Jones, who in tandem with Robert Kraft (who got his own bitter-pill of commissioner authority in Deflategate) are considered to be the league’s most powerful and influential owners. Both decisions more closely resembled political maneuvering and PR bytes than an actual attempt to render justice.
On the other hand, several players have faced serious allegations and the league has declined to discipline them, so it basically comes down to Roger Goodell’s whim as his opinion is the only one that counts under Article 46 of the Collective Bargaining Agreement.
Perhaps if Brown bends over backward to cooperate and appease Goodell, then he might be shown some leniency, but if Goodell has made his mind up in regard to wrongdoing or his preferred course of action, any efforts by Brown to defend himself could be viewed as non-cooperation. There are very few limitations to Goodell’s authority, so what he deems necessary to “protect the integrity of the game of professional football” is subject to few if any viable challenges.
I asked Wallach if the CBA negotiations in progress might be a deterrent to overreach but he didn’t seem to think so. He noted that only about 10 players in the last 15 years have been placed on the exempt list and only about 1% of players subjected to discipline under Article 46, and therein lies the problem. Because of the salary cap and limited leverage, he didn’t feel that 99% of the players would sacrifice anything of value to save the 1%.
For Antonio Brown, it’s a wait and see game with his career on the line. If his accuser can show that she’s credible and has been subjected to sexual violence, then the NFL would be justified in issuing a level of punishment that it feels is necessary to deter future aggression against women.
If, as Brown has claimed through his attorney, that the accusations stem from a failed extortion attempt and he is found not liable in the lawsuit against him or worse, if the accuser is sanctioned for filing a frivolous lawsuit in an attempt to manipulate Brown and the commissioner decides to issue a suspension anyway, or he loses a season on the exempt list, players should take note because an open season for extortion has been declared.
Whether you love, hate, or are indifferent as to Antonio Brown; whether you believe his maneuvering among teams reflects pettiness, instability or genius, how the league handles the allegations currently against him is a marker for other players to strongly consider as they navigate the road to their next labor deal.
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Sheilla Dingus founded Advocacy for Fairness in Sports in October 2016, after a stint with Defenders of the Wall, a New England Patriots based blog where she dived deep into the legal aspects of Deflategate. Along the way, she observed many inequities in sports and felt a need to address some of the under-reported stories in sports law. She draws from her background as a former professional dancer, who like many of the athletes she writes about, took an early retirement due to orthopedic injuries. After a return trip to college she worked for a legal software company, with seven years as a Project Manager and Analyst. She brings her analytical skills to the table in breaking down complex lawsuits, and enjoys pursuing her longtime interest in journalism.
